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JAMES DOE ET AL. v. ROBERT RACKLIFFE

(AC 37681)

DiPentima, C. J., and Sheldon and Bishop, Js.

Argued January 19—officially released May 23, 2017

(Appeal from Superior Court, judicial district of

Hartford, Elgo, J.)

Pamela LeBlanc, with whom, on the brief, were Erin

E. Canalia and A. Ryan McGuigan, for the appellants (plaintiffs).

Laura Pascale Zaino, with whom were William J.

Sweeney, Jr., and, on the brief, Richard C. Tynan and

Logan A. Forsey, and for the appellee (substitute

defendant).
Opinion

DiPENTIMA, C. J. The plaintiffs, James Doe and John

Doe, appeal from the order of the trial court denying

their motion for continued use of pseudonyms in their

underlying civil action against the defendant, Robert

Rackliffe, a pediatrician. On appeal, the plaintiffs claim

that the court erred in denying their motion for continued use of pseudonyms (1) by requiring the plaintiffs

to present live testimony at an evidentiary hearing as

a prerequisite to permitting them to use pseudonyms

and (2) because the existing record showed that the

plaintiffs had substantial privacy interests in maintaining their anonymity that outweighed the public’s

interest in knowing the names of the parties. We disagree and, accordingly, affirm the order of the trial

court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiffs commenced this action alleging, in a four count complaint

dated May 1, 2014, that they were sexually assaulted

as minors by the defendant. The first and third counts

allege that the defendant sexually assaulted the plaintiffs, as minors, while they were his patients. The second

and fourth counts allege negligence by the defendant in

the care and treatment of the plaintiffs. All four counts

further allege that as a direct and proximate result of

the actions of the defendant, the plaintiffs have suffered

physical injury, extreme emotional distress, fear, apprehension, and likely permanent psychological pain and

mental anguish.

Simultaneously with filing their complaint on May 1,

2014, the plaintiffs filed an ex parte application for

permission to use pseudonyms to commence their

action against the defendant pursuant to Practice Book

§ 11-20A (h).1 The court, Robaina, J., granted the plaintiffs temporary permission to proceed under the pseudonyms ‘‘James Doe and John Doe,’’ pending a hearing

on the continued use of those pseudonyms. The hearing

was scheduled originally for July 14, 2014, and then

continued to July 28, 2014. On May 1, 2014, the plaintiffs

filed a motion for the continued use of those pseudonyms (motion), to which the defendant objected on

July 23, 2014.

In the defendant’s objection, he asserted that the

motion should be denied because the court did not have

sufficient facts before it to support a finding under

Practice Book § 11-20A (h) that the continued use of

pseudonyms was necessary, and therefore ‘‘an evidentiary hearing on the motion should be held for the court

to make the necessary finding . . . .’’ The defendant

further noted that the plaintiffs’ motion also should be

denied because they had publicized their lawsuit to

news media outlets ‘‘to advance their claim, to seek

other plaintiffs and in general to bring their case public
without having to stand up and identify themselves as

is normally required under our constitutional right to

an open court system.’’

On July 28, 2014, the plaintiffs filed a reply to the

defendant’s objection, in which they asserted that an

evidentiary hearing was notrequired because the allegations in their complaint were sufficient for the court to

make the necessary finding under Practice Book § 11-

20A (h). The plaintiffs furtherresponded that their comments on the case to news media outlets did not amount

to a forfeiture of their right to have their identities

protected from the public.

On July 28, 2014, the court, Berger, J., continued

the hearing and scheduled an evidentiary hearing for

October 8, 2014, in order to allow the parties to present

evidence on the motion.2 The plaintiffs submitted affidavits on September 19, 2014, and September 22, 2014,

which described acts of sexual assault committed

against them by the defendant. On September 24, 2014,

the plaintiffs filed a supplemental memorandum in support of their motion, arguing that an evidentiary hearing

was not required because the allegations in their complaint and the statements in their affidavits were sufficient for the court to make the necessary finding under

Practice Book § 11-20A (h). In that supplemental memorandum, the plaintiffs specifically asserted that ‘‘[i]t is

[the] plaintiffs’ position that such evidentiary hearing

should not be held in the instant matter because a

hearing at this stage of the litigation would serve no

other purpose than to subject the plaintiffs to further

ridicule in a public forum, and exacerbate their severe

emotional and psychological distress.’’

On October 8, 2014, the date for which an evidentiary

hearing had been scheduled, the court, Elgo, J., heard

the arguments of the parties pertaining to the motion.

A significant part of the arguments focused on whether

an evidentiary hearing was required. Specifically, the

defendant argued that an evidentiary hearing was

required under Practice Book § 11-20A (h) because the

record was insufficient to support any finding that the

use of pseudonyms is necessary to preserve any interest

that outweighed the public’s interest in knowing the

names of the parties. In turn, the plaintiffs insisted that

the court could grant their motion based on their sworn

affidavits, and indicated that no additional evidence

would be proffered in support of their motion at the

scheduled hearing.

On February 9, 2015, the court, Elgo, J., held a hearing

to make the requisite finding of notice required under

Practice Book § 11-20A (h) (3). At that hearing, the

court stated that the plaintiffs had not provided an

adequate evidentiary basis for the court to permit the

continued use of pseudonyms. The court also expressed

its concern about the representations the plaintiffs had

made to news media outlets pertaining to the case.
The court issued a written order on February 11, 2015,

in which it concluded: ‘‘In the absence of an evidentiary

hearing and based solely on the claims in the affidavits

submitted by the plaintiffs, this court cannot find that

the plaintiffs have met their burden of demonstrating

that their privacy interests outweigh the public interest

in knowing the names of the parties.’’ The court continued that it ‘‘cannot reconcile how it can make findings

requiring it to consider the relative interests of the parties and the public without considering the credibility

and weight of the evidence being put forward to support

the plaintiffs’ claims that they will suffer future harassment, social stigmatization, and exacerbation of their

emotional distress and psychologicaltrauma if forced to

reveal their identities.’’ The court further noted: ‘‘Those

factors, especially the claim that emotional distress and

psychological trauma would be exacerbated, if proven

after an evidentiary hearing, might have been enough

to overcome the public’s interest in open proceedings.

Vargas v. Doe, 96 Conn. App. 399, [900 A.2d 525] (while

embarrassment and humiliation in one’s professional

and social community is normally insufficient, the most

compelling situations include social stigmatization, real

danger of physical harm or where the injury litigated

against would occur as a result of the disclosure of the

party’s identity), [cert. denied, 280 Conn. 923, 908 A.2d

546 (2006)]. An affidavit, however, while appropriate

for ex parte relief, is inadequate at this stage.’’ The

court also noted: ‘‘Even if there were a full evidentiary

hearing, also troubling to this court is the undisputed

claim that the plaintiffs have brought this lawsuit to

the attention of the news media. While the court

assumes that their identities were not revealed, this

lawsuit remains to be litigated and tried in open court.

To call public attention to the fact of the litigation

against the defendant also subjects the plaintiffs, and

the testimony they must inevitably share in open court,

to increased media attention, undermining to some

extent their claim that they hope to limit further, unnecessary exposure, emotional distress and psychological

trauma to themselves.’’ Accordingly, the court denied

the plaintiffs’ motion. This appeal followed.3 Additional

facts will be set forth as necessary.

We address the two claims the plaintiffs raise on

appeal together because they both rest on the plaintiffs’

contention that the court was presented with sufficient

evidence to conclude that they had substantial privacy

interests in maintaining their anonymity that outweighed the public’s interest in knowing the names of

the parties. Specifically, the plaintiffs argue that the

allegations of their complaint and averments in their

affidavits left no room for the court to conclude other

than that their privacy interests outweighed the public’s

interest in knowing the names of the parties, even with

the media attention surrounding the case.
We begin by setting forth our well established standard of review and the relevant legal principles that

guide our resolution of this claim. ‘‘We review a trial

court’s decision granting or denying a motion to seal

to determine whether, in making the decision, the court

abused its discretion. . . . Likewise, we review a trial

court’s decision on whetherto permit a party to proceed

anonymously to determine whether, in granting or denying such a request, the court employed its informed

discretion . . . . Inherent [therefore] in the concept of

judicial discretion is the idea of choice and a determination between competing considerations. . . . A court’s

discretion must be informed by the policies that the

relevant statute is intended to advance. . . . When

reviewing a trial court’s exercise of the legal discretion

vested in it, our review is limited to whether the trial

court correctly applied the law and reasonably could

have concluded as it did. . . . Practice Book § 11-20A

provides the procedure courts must follow when considering . . . motions to permit parties to proceed

anonymously.’’ (Citations omitted; internal quotation

marks omitted.) Vargas v. Doe, supra, 96 Conn. App.

408–409.

Pursuant to Practice Book § 11-20A (h) (1), ‘‘[p]seudonyms may be used in place of the name of a party

or parties only with the prior approval of the judicial

authority and only if the judicial authority concludes

that such order is necessary to preserve an interest

which is determined to override the public’s interest

in knowing the name of the party or parties.’’4

‘‘The

procedure outlined in § 11-20A (h) (1) provides a road

map for what long has been understood as a high threshold for granting applications to proceed anonymously

. . . . The question the court first must address when

considering such an application is whether, given the

presumption of openness in all judicial proceedings,

the [party] has a substantial privacy right which outweighs the customary . . . presumption of openness

in judicial proceedings. . . . Furthermore, not all substantial privacy interests are sufficient to outweigh the

public’s interest in open judicial proceedings. The ultimate test for permitting a [party] to proceed anonymously is whether the [party] has a substantial privacy

right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings. . . . A [party’s] desire to avoid economic and

social harm as well as embarrassment and humiliation

in his professional and social community is normally

insufficient to permit him to appear without disclosing

his identity. . . . The most compelling situations [for

granting a motion to proceed anonymously] involve

matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the

injury litigated against would occur as a result of the

disclosure of the [party’s] identity. . . . There must be

a strong social interest in concealing the identity of the
[party].’’ (Citations omitted; internal quotation marks

omitted.) Vargas v. Doe, supra, 96 Conn. App. 410–11.

‘‘Because [l]awsuits are public events . . . [a] plaintiff

should be permitted to proceed anonymously only in

those exceptional cases involving matters of a highly

sensitive and personal nature . . . .’’ Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 70, 818

A.2d 14 (2003).

Guided by the foregoing, we conclude that the court

did not abuse its discretion in denying the plaintiffs’

motion. We note that the relief sought by the plaintiffs

on appeal does not request a remand for an evidentiary

hearing but rather seeks a reversal of the trial court’s

denial of their motion for continued use of pseudonyms;

in the alternative, they ask that the case be remanded

so that ‘‘the trial court can make findings of fact based

on the full record, including the plaintiffs’ affidavits.’’

In reviewing the evidence before it and in accordance

with what the plaintiffs seek now on appeal, the trial

court correctly assumed that the plaintiffs were steadfastly5 opposed to an evidentiary hearing and relied

solely on their affidavits to support their motion. Thus,

the court was left with the plaintiffs’ affidavits only as

the bases for determining whether they had met their

burden of demonstrating substantial privacy interests

in maintaining their anonymity that outweighed the public’s interest in knowing their names.6 See Practice Book

§ 11-20A (h) (1).

In their affidavits, the plaintiffs describe acts of sexual assault committed against them, as minors, by the

defendant over the course of ten years while they were

his patients. Both affidavits state that the plaintiffs had

‘‘suffered physical injury, extreme distress, and likely

permanent psychological pain and mental anguish’’ as

a result of the defendant repeatedly sexually assaulting

them. The affidavits further provide that if the plaintiffs

were not able to continue using a pseudonym in this

case, they would ‘‘suffer harassment, ridicule, severe

humiliation, and even further emotional and psychological anguish.’’

These affidavits, however, do not set forth any specific facts or evidence to support the plaintiffs’ conclusory statements as to the harm they would suffer if they

could not proceed anonymously. See generally Stuart

v. Freiberg, 316 Conn. 809, 828–29, 116 A.3d 1195 (2015)

(conclusory averments in affidavit inadequate to defeat

motion for summary judgment); see also Vargas v. Doe,

supra, 96 Conn. App. 410 (burden on movants ‘‘to show

why they should be permitted to proceed anonymously’’); see, e.g., Doe v. Diocese Corp., 43 Conn. Sup.

152, 161, 647 A.2d 1067 (1994) (court allowed plaintiff

to use pseudonym in case where testimony of plaintiff

expressed ‘‘real concern and fear of shame and humiliation if he received public exposure,’’ and testimony

of plaintiff’s therapist stated that he would ‘‘strongly
[recommend] against public exposure . . . [as] it

would create real problems with the plaintiff’s therapy’’); Doe v. Firn, Superior Court, judicial district of

Ansonia-Milford, Docket No. CV-06-5001087-S (September 22, 2006) (court allowed plaintiff to use pseudonym

in case where testimony of plaintiff ‘‘revealed that she

ha[d] received psychological and psychiatric treatment

related to the alleged assaults on fifteen or twenty occasions, and that she continue[d] to receive such counseling’’). We are particularly mindful of the presumption

set forth in Practice Book § 11-20A (a) that documents

filed with the court should be available to the public. In

light of that presumption, it is ‘‘only in those exceptional

cases involving matters of a highly sensitive and personal nature’’; (internal quotation marks omitted) Doe

v. Connecticut Bar Examining Committee, supra, 263

Conn. 70; that a party should be permitted to use pseudonyms in the underlying civil action.

Here, the plaintiffs assert that their case involves

matters of a highly sensitive and personal nature. See

id.; see also Vargas v. Doe, supra, 96 Conn. App. 410–11.

In particular, the plaintiffs’ affidavits allege that they

had substantial privacy interests in maintaining their

anonymity in this case because they likely will suffer

social stigmatization, due particularly to the nature of

their allegation that the defendant, their pediatrician,

had sexually assaulted them multiple times over ten

years when they were minors. Although this court previously has recognized that ‘‘when allegations of sexual

assault are involved, those who are alleged to be victims, especially minors, may have strong privacy interests in having the allegations and surrounding

circumstances concealed from public scrutiny, the procedures that our rules of practice provide do not permit

automatic approval of the use of pseudonyms by the

party or parties involved. Rather, the rules of practice

provide an intricate procedure that the court must follow prior to permitting the use of pseudonyms in any

given case.’’ Vargas v. Doe, supra, 96 Conn. App. 413.

In particular, a prerequisite for a party to proceed anonymously under Practice Book § 11-20A (h) (1) is that

the trial court must ‘‘determine the existence of a substantial privacy interest that outweighs the public interest in open judicial proceedings and . . . articulate any

factual findings that would support such a conclusion.’’

Id., 412.

Because the plaintiffs’ affidavits merely stated the

general nature of the privacy interests they asserted

without providing factual or evidentiary support for

that assertion,7 we cannot conclude, on the basis of

the record, that the court reasonably could only have

determined that the plaintiffs’ substantial privacy interests in maintaining their anonymity outweighed the public’s interest in knowing their names.8 We therefore

conclude that the court did not abuse its discretion in

denying the plaintiffs’ motion.
The order is affirmed.

In this opinion the other judges concurred.

1 Practice Book § 11-20A (h)(2) provides: ‘‘The judicial authority may grant

priorto the commencement ofthe action a temporary ex parte application for

permission to use pseudonyms pending a hearing on continuing the use of

such pseudonyms to be held not less than fifteen days after the return date

of the complaint.’’ In addition, § 11-20A (h) (3) further provides in relevant

part: ‘‘After commencement of the action, a motion for permission to use

pseudonyms shall be placed on the short calendar to be held not less than

fifteen days following the filing of the motion . . . so that notice to the

public is given of the time and place of the hearing on the motion and to

afford the public an opportunity to be heard on the motion under consideration. . . .’’

2 The October 8, 2014 date was selected to accommodate the plaintiffs,

who reside out of state.

3 The defendant moved to dismiss the appeal, and this court denied that

motion but ordered the parties to file supplemental briefs addressing

whether the appeal should be dismissed for lack of a final judgment. After

the parties briefed the final judgment issue, this court issued an order

determining that ‘‘[t]he trial court order denying a motion for continued use

of pseudonyms in this case is an appealable final judgment pursuant to the

second prong of State v. Curcio, 191 Conn. 27, 31–36 [463 A.2d 566] (1983).

See Sabanovic v. Sabanovic, 108 Conn. App. 89, 90 n.1 [946 A.2d 1288]

(2008).’’

4 Practice Book § 11-20A (h) (1) further provides: ‘‘The judicial authority

shall first consider reasonable alternatives to any such order and any such

order shall be no broader than necessary to protect such overriding interest.

The judicial authority shall articulate the overriding interest being protected

and shall specify its findings underlying such order and the duration of

such order. If any findings would reveal information entitled to remain

confidential, those findings may be set forth in a sealed portion of the record.

The time, date, scope and duration of any such order shall forthwith be

reduced to writing and be signed by the judicial authority and be entered

by the court clerk in the court file. The judicial authority shall order that

a transcript of its decision be included in the file or prepare a memorandum

setting forth the reasons for its order. An agreement of the parties that

pseudonyms be used shall not constitute a sufficient basis for the issuance

of such an order. The authorization of pseudonyms pursuant to this section

shall be in place of the names of the parties required by Section 7-4A.’’

5 We note that the plaintiffs continued to insist that the court could make

the necessary finding under Practice Book § 11-20A (h) (1) based on their

affidavits and therefore a full evidentiary hearing was not required.

6 The plaintiffs also relied on their complaint to meet their burden of

demonstrating that their substantial privacy interests in maintaining their

anonymity outweighs the public’s interest in knowing the names of the

parties, and insisted that the statements therein were sufficient for the court

to make the necessary finding under Practice Book § 11-20A (h). Their

complaint, however, does not demonstrate how their substantial privacy

interests in maintaining their anonymity outweighed the public’s interest in

knowing the names of the parties.

According to the plaintiffs’ complaint, it alleges that the plaintiffs were

patients of the defendant for over ten years. The complaint further alleges

that during their visits to him for treatment the defendant sexually assaulted

the plaintiffs by digital anal penetration and fondling their genitalia. The

complaint also alleges that as a direct and proximate result of being sexually

assaulted by the defendant, the plaintiffs have suffered, and will suffer,

physical injury, extreme emotional distress, fear and apprehension, and

psychological pain and mental anguish thatrequired them to seek psychological and psychiatric treatment and prescription medication, that will continue

in the future.

7

In addition, we note that the court, in determining that the plaintiffs’

affidavits did not provide a sufficient evidentiary basis for it to make the

necessary finding under Practice Book § 11-20A (h) (1), afforded the plaintiffs an opportunity to present evidence beyond their affidavits in support

of their motion at an evidentiary hearing. The plaintiffs, however, declined

this opportunity. Therefore, to the extent that the plaintiffs claim that the

court required them to present ‘‘live’’ testimony at an evidentiary hearing

as a prerequisite to permitting them to use pseudonyms, that argument rests

on a faulty assumption.
8 Both parties and the court allude to the plaintiffs’ publicizing the facts

of this case to news media outlets. We acknowledge that ‘‘[w]here the public

already is aware of the circumstances sought to be kept private and readily

can identify the individuals involved in those circumstances, the privacy

interest at stake may become substantially less weighty.’’ Vargas v. Doe,

supra, 96 Conn. App. 414 n.11. We need not discuss this further, however,

as we have previously concluded in this opinion that, even without this

evidence, we are not persuaded by the plaintiffs’ claim that the trial court

abused its discretion in not finding that they have substantial privacy interests in maintaining their anonymity that outweigh the public’s interest in

knowing their names.